RIGHTS OF UNPAID SELLER. SECTION 43. SUIT FOR CONTRACT PRICE. If the purchaser defaults in the payment of the purchase price, as fixed in the contract of sale, the primary relief to the seller, as against buyer personally, is the right to sue for the contract price. This is usually the only remedy that remains to the seller, where the goods are sold on credit, and the purchaser vested with title to the same by delivery, where there is not such fraud in the contract, as would give the right to avoid it. The right to sue matures at the expiration of the time given the buyer to pay for the goods. The seller may, however, the terms of the contract so providing, hold the goods as bailee, claim his lien, and also sue for the purchase price.' The right to the seller is likewise not lost by his exercising his right of stoppage in transitu, provided he still holds himself in readiness to deliver the goods to the purchser, on the purchaser making payment for the goods.2 SECTION 44. ACTION FOR DAMAGES. Where the subject matter of the sale has not been delivered, or where the contract may be rescinded on the ground of fraud, or otherwise, the remedy of the seller is in an action for damages for breach of contract on the part of the buyer. The law usually fixes the measure of damages for the breach of contract of sale on the part of the buyer, as the difference between the 1 Frazier vs. Simmons, 139 Mass., 531. • Newhall vs. Vargas, 15 Me., 314. contract price, and the market value at the time and place of delivery.3 The law makes an apparent exception to the general rule where goods are manufactured upon the agreement of the buyer to receive the goods when ready, the buyer being liable for the full contract price, on the theory that title to the goods has passed to him, the law compelling the seller, however, to hold the goods for the purchaser. It is a general rule of law, that where the seller has parted with goods, and has been induced to do so by the fraud of the purchaser, the law permits him to bring an action for the deceit, but since the contract under such circumstances is voidable and not void, the seller has this remedy or a choice of another remedy, if he wishes to ratify the contract after the discovery of the fraud. An election to rescind the contract, would preclude the seller thereby. The seller, under the circumstances now under discussion, must proceed, within a reasonable time after discovery of the fraud, to make his choice of remedies, whether he will disaffirm the contract, or whether he will ratify it and then seek his damages for the fraud perpetrated by the buyer. He has no right to delay action so as to prejudice the rights of a third person, who may in the meantime purchase the goods in good faith. The seller, after he has sold the goods named in the contract of sale, continues to have a special property interest in the goods, which grows out of the original ownership, as long as the possession remains in him. • Whitney vs. Boardman, Mass., 242. 118 Smith vs. Wheeler, 7 Oregon, 49. Barnard vs. Campbell, 58 N. Y., 73 either actual or constructive. The special property right is designated the vendor's lien, although the right carries with it something more than the mere lien as we ordinarily understand the term." The lien, the holding of the goods to secure payment, secures only the unpaid purchase price, and does not extend to the payment of storage or dock charges, or any other expense or charge incident to the exercise of the lien.' The lien being a mere right or privilege as a protection to the vendor, he may waive the right to exercise the same. The lien is impliedly waived by giving credit to the purchaser, unless it is further understood that the goods are to remain in the possession of the seller. This implied waiver is more or less a conditional waiver, made on the understanding that the purchaser will keep his credit good at least until receipt of the goods by the vendee. The vendor's right of lien is lost by unconditional delivery to the vendee. The lien is not lost, however, if the purchaser procures possession by fraud, unless the goods have passed to a bona fide purchaser. SECTION 46. STOPPAGE IN TRANSIT. The right of stoppage in transitu, that is the right to reclaim the possession of the goods while still in transit, from the seller to the buyer, was founded in the civil law, and looked upon as a remedy of the court of equity primarily, but is now, and has been for a long time, looked upon as a legal remedy and right, and is of universal application in courts of law. It is an extension of the right of the vendor's lien. The lien is lost by parting with possession of the goods, but the • Diem vs. Koblitz, 49 Ohio St., 41. 'Jones on Liens, Sec. 904. • Smith vs. Dennie, 6 Pick. (Mass.), 262. right to resume the lien may be acquired, by the exercise of this right of stopping the goods in transit up to any time previous to the vendee's actually acquiring possession of the goods. The right arises with the transfer of title to the goods and the delivery to the carrier to be turned over to the purchaser. It may be said to begin where the lien leaves off. The right of stoppage in transitu, arising from original ownership, can only be exercised by the vendor, or one standing in his position; it could not be exercised by one having a mere lien on the goods.10 The right is ordinarily to be exercised only against an insolvent buyer, but this would include any one who apparently has by his conduct or acts furnished evidence of general inability to pay his debts. The vendor's right of stoppage in transitu cannot be taken away by an attachment levied on the goods by the creditors of the buyer." The transit of the goods ends when, having arrived at their destination, they are given over into the actual or constructive delivery of the purchaser. The right of stoppage in transitu is effected by a notice to the carrier, ordering their stoppage, the notice should properly be in writing and should sufficiently describe the goods for purposes of identification, and should state the reason for the stoppage. The carrier, however, cannot insist on proof, of the statement contained in the notice, or of the right to claim the stoppage in any particular case.12 It is reasonable, however, that the seller should act in good faith toward the carrier in the exercise of this right, and he must pay the carrier's charges against the goods. Newhall vs. Vargas, 13 Me., 93. 10 Sweet vs. Pym, 1 East, 4. "Naylor vs. Dennie, 8 Pick.(Mass.), 12 Allen vs. Maine Central R. Co., 79 Me., 327. The exercise of the right of stoppage in transitu restores possession of the goods and incidentally the vendor's lien. The unpaid vendor of goods has the further right of making a re-sale of the goods under certain circumstances. The title to the goods sold may have passed, and yet the vendee may refuse to fulfill his obligation to the seller to make payment for the goods, or it may be impossible for him to fulfill his obligations because of his insolvency; in either of these cases, the vendor may exercise his right of re-sale. It is a power greater than either the lien, or the right of stoppage in transitu, and may be exercised while the possession originally remains in the vendor, under proper circumstances, or when the goods have been retaken under a proper exercise of the right of stoppage in transitu. As to the time when the re-sale may be made, the general rule is that the goods can only be resold when the payment of purchase becomes due.13 But an exception to this general rule exists in the case of perishable property, for obvious reasons. As to whether notice of intention to resell on the part of the buyer to the vendee is necessary, is a matter on which there is a difference of opinion, some few courts hold it is necessary, especially where the seller wishes to make the sum realized on the re-sale a basis of recovery against the buyer.14 In Illinois and in other States, it is held that no notice of intention to re-sell is necessary.15 But notice of time and place of the sale itself need not be given, 13 Shaw vs. Lady Ensley Coal Co., 147 Ill., 526. 14 Holland vs. Rea, 48 Michigan, 218. 15 Ullman vs. Kent, 60 Ill., 271; Rosenbaum vs. Weeden, 18 Gratt (Va.), 785. |